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Thursday, July 5, 2012

Judicial Betrayal

Thomas Sowell

The chief justice forgets his oath to be faithful to the Constitution.

Betrayal is hard to take, whether in our personal lives or in the political life of the nation. Yet there are people in Washington — too often, Republicans — who start living in the Beltway atmosphere and start forgetting those hundreds of millions of Americans beyond the Beltway who trusted them to do right by them, to use their wisdom instead of their cleverness.

The first President Bush epitomized these betrayals when he broke his “read my lips, no new taxes” pledge. He paid the price when he quickly went from high approval ratings as president to someone defeated for reelection by a little-known governor from Arkansas.

Chief Justice John Roberts need fear no such fate, because he has lifetime tenure on the Supreme Court. But conscience can be a more implacable and inescapable punisher — and should be.

The chief justice probably made as good a case as could be made for upholding the constitutionality of Obamacare by defining one of its key features as a “tax.”

The legislation didn’t call it a tax, and Chief Justice Roberts admitted that this might not be the most “natural” reading of the law. But he fell back on the longstanding principle of judicial interpretation that the courts should not declare a law unconstitutional if it can be reasonably read in a way that would make it constitutional, out of “deference” to the legislative branch of government.

But this question, like so many questions in life, is a matter of degree. How far do you bend over backwards to avoid the obvious: that Obamacare was an unprecedented extension of federal power over the lives of 300 million Americans today and of generations yet unborn?

These are the people that Chief Justice Roberts betrayed when he declared constitutional something that is nowhere authorized in the Constitution of the United States.